The following are a collection of legal, technical and policy resources related to significant developments and innovative approaches that are occurring with respect to the interstate transport of air pollutants. This document includes the following sections:

EPA’s slide presentation at the September 2017 meeting of the Association of Air Pollution Control Agencies (AAPCA) offers the agency summary of a variety of issues related to interstate transport of air pollutants, including recent material on the implementation of the 2008 and 2015 ozone NAAQS. EPA notes the several mechanisms created under the Clean Air Act for addressing interstate transport, including section 110(a)(2)(D)(i)(l) (also known as the “good neighbor” provisions), Section 126 and Section 176A.

Section 110(a)(2)(D)(i)(1), “good neighbor” SIPs”, EPA notes that 24 states do not have approved good neighbor SIPs related to the 2008 ozone NAAQS and that EPA is under deadline to issue FIPs related to those state beginning in June 2018 and ending March 2019.

Section 176A, nine (9) Northeast states inside the Northeast Ozone Transport Region (NEOTR) petitioned EPA to add 9 upwind states to the NEOTR. As will be discussed below, that petition has now been denied by EPA.

Section 126, three (3) petitions are currently pending. The petition filed by Connecticut names the Brunner Island station in Pennsylvania. The petition filed by Delaware names stations in Pennsylvania, and West Virginia. The petition filed by Maryland names stations located in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia. MOG responses to the Maryland and Delaware petitions are set out below.

Section 110(a)(2)(D), the Cross State Air Pollution Rule (CSAPR) Update was finalized September 7, 2016 and is currently being challenges in the DC Circuit. See a discussion of initial briefs set out in item 3 below.

In this presentation, the States of Georgia, Tennessee and North Carolina offer an alternative approach to the development of future transport rules such as CSAPR.

3. CSAPR Litigation

As of the publication of this document, the final CSAPR Update Rule is being challenged in the DC Circuit. Briefing is underway with initial briefs already filed. The following are the highlights of the initial briefs that have been filed:

EPA arbitrarily failed to timely act—within a year—on SIPs submitted by several states and instead unlawfully delayed making a decision on those plans for several years while it developed data sufficient to justify denial.

EPA arbitrarily and unlawfully included biogenic sources of ozone with manmade activities in determining the significance of upwind states.

EPA failed to provide adequate notice of its intent to use CSAPR modeling in the west.

In their challenge to the CSAPR Update, industry groups challenged EPA’s CSAPR Update. The following is a summary of the arguments they are advancing:

Critical aspects of the Rule are arbitrary, unsupported, and unlawful. Among other things, the Rule’s defects prevented EPA from ensuring against impermissible over-control of upwind-state emissions.

Ignoring logic and its own prior practice, EPA arbitrarily relied exclusively on air-quality modeling to identify downwind “problem” areas to be addressed Rule, without giving meaningful weight to current measured, real-world air quality.

EPA’s disregard of key factors meant that it failed to ensure against unjustified overstatement of downwind ozone concentrations for which upwind states were held liable: EPA (i) failed to account properly for its methodology’s overstatement of projected ozone at near-shoreline receptors; (ii) disregarded non-U.S. emissions’ substantial effects; and (iii) failed to consider all emission-reduction requirements that were effective by ozone-season 2017.

In assessing whether the Rule over-controls, EPA considered only those air quality effects at each downwind receptor that were attributable to the Rule’s emission-reduction requirements in the subset of regulated upwind states that EPA “linked” to that particular downwind receptor. EPA’s over-control analysis was, therefore, fatally flawed by its refusal to consider the full effects of required emission reductions throughout the multistate region regulated by the Rule. Moreover, failing to give proper recognition to the CAA principle that each state bears primary responsibility for assuring NAAQS attainment within its borders, EPA did not account properly for ozone-reducing effects of emission controls reasonably available in downwind states with nonattainment areas. In addition, EPA failed to support and explain factual aspects of its modeling that conflicted with announced EPA determinations concerning projected EGU retirements and emission rates.

EPA arbitrarily required the same degree of emission reductions from all upwind states, regardless of the nature of the downwind “problem” to be resolved—thereby requiring states linked solely to projected “maintenance-only” receptors to reduce emissions to the same degree as states linked to projected nonattainment receptors. And EPA arbitrarily failed to adjust state emission budgets upwards to account for the infeasibility of accomplishing new combustion-control installations by ozone-season 2017.

In their challenge to the CSAPR Update, NGO groups and the State of Delaware challenged EPA’s CSAPR Update. The following is a summary of the arguments they are advancing:

EPA acted unlawfully and arbitrarily by adopting emission budgets that do not eliminate upwind states’ significant contributions to downwind nonattainment and maintenance areas by the deadlines for attainment of 2008 ozone standard. EPA’s claim that it is excused from compliance with this statutory requirement when it acts before the deadline for promulgation of a federal plan is contrary to the plain language of the statute, contrary to decisions of this Court and the Supreme Court, and unreasonable. Further, by failing to provide for pollution reductions achievable in the near-term through engaging already-installed controls, optimizing the use of installed controls, and shifting generation to lower-emitting sources, and by authorizing sources to emit above the budgets through the use of banked allowances, EPA contravened the statutory requirement to eliminate upwind states’ significant contributions as expeditiously as practicable and acted arbitrarily.

Separately, Delaware contends that EPA’s application of the rule to marginal nonattainment areas and failure to require reductions of significant contribution to those areas, including Delaware, suffers similar flaws. In addition, EPA unreasonably failed to consider how its modeling beyond NAAQS attainment deadlines unfairly and permanently shifted the responsibility to reduce pollution from upwind states to downwind areas like Delaware.

In a letter to EPA dated September 15, 2017 AAPCA offered a series of recommendations for how EPA should revise its approach to addressing interstate transport. The following is an excerpt from that letter:

Now is the time for EPA to make meaningful updates to its approach to address interstate transport for the ozone NAAQS. Recent state and local comments highlight the need for EPA action on the following issues:

Re-evaluate the 1 percent threshold for significant contribution, including the assessment for the 2015 ozone NAAQS

Determine that states should not be required to offset international or non-anthropogenic emissions through interstate transport requirements

Embrace a state-driven process to address interstate transport, including EPA action on timely and relevant SIPs and a re-assessment of expectations for Infrastructure SIPs

Alpine Geophysics has undertaken modeling in support of the development by the Commonwealth of Kentucky of a Good Neighbor SIP related to the 2008 ozone NAAQS. This protocol has been finalized to reflect comments of EPA.

The results of the modeling performed by Alpine Geophysics demonstrates that in 2023 there are no nonattainment or maintenance monitors in the East with respect to the 2008 ozone NAAQS. There is therefore no reason to determine significant contribution or to pursue additional emission reductions from other states.

EPA also performed modeling of 2023 and reached the same conclusion as the Midwest Ozone Group that in 2023 there are no nonattainment or maintenance monitors in the East with respect to the 2008 ozone NAAQS.

Modeling performed by the New York Department of Environmental Conservation illustrates the significant impact on air quality that can be caused by the operation of small peaking units on high ozone days. According to the results provided by the agency, when emissions from these older peaking units were “zeroed-out” on a high ozone day, modeled ambient ozone concentrations were reduced by as much as 4.8 ppb.

The Midwest Ozone Group filed comments with EPA in which it explained why the petition should be denied. Among the reasons cited are the following:

Maryland’s current ozone air quality is already measuring attainment of the 2008 ppb) ozone NAAQS

The increases in ozone concentrations in 2016 at the Cecil monitor occurred at a time when EGU NOx emissions decreased

NOx emission trends for states targeted by the petition are decreasing

The most significant individual source NOx category contributor to ozone concentrations at the Cecil monitor are motor vehicle emissions from within Maryland. Also, the 36 EGU’s identified in Maryland’s §126 petition are merely a subset of the 6% contribution from all EGU’s from the Target states.

Maryland’s air quality improves with noted reductions in local ozone precursors.

EPA projects that in 2017 all Maryland monitors, including Cecil, will be in attainment of, the 2008 75 ppb ozone NAAQS.

The only maintenance monitor in Maryland that has been identified by EPA is the Harford monitor – a monitor location where ambient ozone concentrations are more affected by bay breeze than interstate transport.

EPA Tier 3 modeling demonstrates that all Maryland monitors, including Cecil and Harford, will be in attainment with the 2008 ozone NAAQS in 2025 thus satisfying the agency’s long standing test for addressing maintenance areas

Had EPA air modeling projections taken into account the significant emissions reduction programs that are legally mandated to occur, it would have predicted Maryland to have no nonattainment or maintenance areas.

a. Pennsylvania RACT II. b. OTC Measures. c. Intra-Maryland Measures

The CSAPR Update Rule legally and practically resolves the issues raised by the Maryland petition.

The 2015 70 ppb ozone NAAQS currently does not provide a basis for the petition.

International emissions must be addressed as an integral part of the consideration of this petition.

On September 29, 2017 the State of Maryland filed suit against EPA in federal District Court in Maryland related to EPA failure to act on their 126 petition. In their complaint Maryland requested the Court to grant the following relief, among other things:

Declare that EPA is in violation of § 126 of the Act for failing to timely hold a public hearing with regard to Maryland’s § 126 petition, and for failing to timely make the requested finding or to deny the petition;

Order EPA to (1) hold a public hearing on Maryland’s § 126 petition within thirty (30) days, and (2) make the requested finding or deny the § 126 petition, after considering comments from the public hearing, within sixty (60) days;

On August 8, 2016, the State of Delaware filed a petition naming the Harrison Power Station in West Virginia. On August 29, 2016, the Midwest Ozone Group filed comments with EPA asking that the petition be denied for, among others, the following reasons:

Delaware’s current ozone air quality is already measuring attainment of the 2008 (75 ppb) and 2015 (70 ppb) ozone NAAQS.

EPA itself projects that in 2017 all Delaware monitors will attain and maintain both the 2008 75 ppb and 2015 70 ppb ozone NAAQS.

EPA itself has determined that Delaware does not have any ozone nonattainment or maintenance areas.

The 2015 70 ppb ozone NAAQS currently does not provide a basis for the petition.

Delaware’s air quality is improving and will continue to improve with nothing more than implementation of existing regulatory programs.

Any future non-attainment or maintenance concerns by Delaware can be addressed under CAA §179B by accounting for international emissions.

On October 27, 2017, EPA denied the petition of the NE states to expand the Northeast Ozone Transport Region. In denying the petition, EPA offered the following comments:

“The EPA believes that other CAA provisions (e.g., section 110(a)(2)(D)(i)(I)) provide a better pathway for states and the EPA to develop a tailored remedy that is most effective for addressing any remaining air quality problems for the 2008 ozone NAAQS identified by the petitioners. The states and the EPA have historically and effectively reduced ozone and the interstate transport of ozone pollution using these other CAA authorities. For purposes of addressing interstate transport with respect to the 2008 ozone NAAQS, the EPA believes that continuing its longstanding and effective utilization of the existing and expected control programs under the CAA’s mandatory good neighbor provision embodied in section 110(a)(2)(D)(i)(I) is a more effective means of addressing regional ozone pollution transport for the areas within the OTR that must attain the NAAQS than expanding the OTR as requested. Furthermore, the EPA believes that reliance on these other CAA authorities is a more appropriate use of the agency’s limited resources. In addition, in light of comments asking the agency to look more closely at the technical merits of the petition, the EPA has reassessed the technical information submitted in support of the petition, both by petitioners and commenters on the proposed denial, and finds there to be sufficient analytical gaps to justify this denial action. Accordingly, the EPA denies the CAA section 176A petition filed by the nine petitioning states.”

“Based on the considerations outlined at proposal, after considering all comments, and for the reasons described in this action, the EPA is denying the CAA section 176A petition submitted by nine petitioning states in December 2013. The EPA continues to believe an expansion of the OTR is unnecessary at this time and would not be the most efficient or effective way to address the remaining interstate transport issues for the 2008 ozone NAAQS in states currently included in the OTR. Additional local and regional ozone precursor emissions reductions are expected in the coming years from already on-the-books rules. The EPA believes its authority and the states’ authority under other CAA provisions (including CAA section 110(a)(2)(D)(i)(I)) will allow the agency and states to develop a more effective remedy for addressing any remaining air quality problems for the 2008 ozone NAAQS identified by the petitioners.”

On May 15, 2017, the Midwest Ozone Group filed comments on the petition to expand the NE Ozone Transport Region. The following are the points offered by the Midwest Ozone Group in opposition to that petition:

Establishment of an Ozone Transport Region is a Discretionary Decision by the Administrator.

Other programs are already being implemented which reduce ozone precursor emissions from states.

CAA Section 176A deals only with nonattainment, making maintenance issues extraneous to the issues before EPA in addressing this petition.

To provide a basis for concluding that a state significantly contributes to nonattainment in the OTR, the petition must establish that the Target States are significant contributors to nonattainment in the Petitioning states

There has already been significant improvement in ozone air quality in the Petitioning States.

Emissions reductions will continue as the result of nothing more than on-the-books controls.

Petitioners seek to use the 176A process to achieve a “level economic playing field” that is not authorized in the CAA and ignores the significant and adequate emission reductions that sources in the upwind states have achieved under current federal and state regulatory programs.

EPA air modeling projections do not take into account significant emission reduction programs that are legally mandated to occur, including:

o Pennsylvania RACT II, o Connecticut RACT, o OTC Measures.

Increases in ozone concentrations in 2016 occurred at a time when EGU emissions decreased.

OTR states are significant contributors to any remaining nonattainment and are therefore responsible for reducing NAAQS violations not attributable to upwind states.

Data indicate that EGU emissions from outside of OTR are not contributing significantly to high episode ozone concentrations within the OTR.

Emission impact of local sources is significantly greater per ton on ozone concentrations at local monitors than emission from sources in upwind states.

International emissions must be addressed as an integral part of the consideration of this petition.

MANE-VU released for comments its August 29, 2017, memo entitled “Impact of Wintertime SCR/SNCR Optimization on Visibility Impairing Nitrate Precursor Emissions.” This proposed the establishment of wintertime requirement for the operation of NOx control equipment for the stated purpose of meeting visibility glide path requirements in 2028.

On September 28, 2017 the Midwest Ozone Group filed comments on that memo asking that it be withdrawn for the following reasons:

MANE-VU should submit SIPs in 2021 because of significant reductions in visibility impairment due to regulatory programs that will impact sources over the next several years.

Mobile sources are the most significant contributor to visibility impairment in MANE-VU but MANE-VU failed to assess their impact.

The single-minded focus of the memo on EGUs fails to assess the extent to which EGUs collectively or individually may, or may not, have an impact on visibility at Brigantine.

Reliance on the historical BOR for the units examined in the memo is an arbitrary action that ignores the capability of the existing NOx control equipment at the selected EGUs to achieve that the historical BOR.

Had the memo used 2016 emission rates for the EGUs examined, and not the BOR for those plants, it is clear that the proposed strategy would have resulted is significantly lower emission reductions – and with no analysis in either case about what if any improvement in visibility would have resulted at Brigantine.

The back trajectory analyses described in the memo clearly indicate that on the most critical nitrate impacted days selected for examination at Brigantine NWR in winter 2015, the winds were out of the North and initiated outside of the U.S.

Before asserting its position that an additional control requirement of any kind should be imposed on upwind US EGUs, MANE-VU has an obligation to assess international and non-anthropogenic emissions with a view towards adjusting the glidepath in accordance with EPA’s regional haze rules.

The Midwest Ozone Group has analyzed international emissions and the manner in which international emissions are addressed under Section 179B of the Clean Air Act and provided a summary of those thoughts in this paper. International emissions are a significant contributor to ozone concentrations to all monitors in the U.S. “But for” international emissions, no monitor in the U.S. is predicted by EPA to have an ozone concentration greater than 66 ppb in 2017. Given the tremendous progress that has already been made by states in improving air quality, properly addressing international emission will eliminate the negative impact of the ozone NAAQS on economic development and job growth.